Free Letter - District Court of Delaware - Delaware

Case 1:05-cv-00160-KAJ-|\/IPT Document 98 Filed O3/O3/2006 Page 1 of 2
Youuc CoNAwAv STARGATT & TAYLOR, LLP
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March 3, 2006
VIA E-FILIN G AND HAND DELIVER Y
The Honorable Kent A. Jordan
United States District Court
for the District of Delaware
844 N. King Street
Wilmington, DE 19801
Re: Novozymes A/S v. Genencor Internczrionczl, Inc. etal.
C.A. No. 05-160 {KA];
Dear Judge J ordan:
We were surprised by Genencor’s submission of a supplemental letter just hours before
teleconference the Court has scheduled for 2;30 pm today. Although Genencor’s letter of today
is largely cumulative of its earlier letter, we respectfully ask the Cou1t’s indulgence of this short
letter in response solely to address a few key distortions in it.
First, Novozymes did not offer to, and did not understand the Court to be ordering
Novozymes to, provide Genencor with detailed explanations for why each document on its
privilege log was not subject to its limited patent prosecution waiver. Novozymes did carefully
review its privilege log again, including Genencor’s l00—plus page list of documents, to ensure
that no additional documents need to be produced. Further, Novozymes asked Genencor for
explanations why it believed particular documents were subject to waiver. Genencor never did.
To be clear, contrary to Genencor’s claim, Novozymes has not produced any additional
documents subject to its limited prosecution waiver since the pre-trial conference (or after the
close of discovery), because there are none. The "additional privileged documents" to which
Genencor refers are documents created during the litigation as part of Novozymes preparation of
its case. As Novozymes has previously stated, these were necessitated by Genencor reneging, at
the last minute, to stipulate to the sequence of G997, and as rebuttal to Genencor’s expert
reports. They have nothing to do with Novozymes’ prosecution waiver.
The expert report referenced by Genencor was produced on February 14, just a few days
after the pre-trial conference. The "informal" report had been produced in good faith on the day
it was generated before the pre-trial conference, and Novozymes told Genencor that a formal
report was forthcoming. Genencor had a full and fair opportunity to depose Novozymes’ expert,
Dr. Arnold, on that report, and any alleged inconsistencies with her "informal" report.
DB0l:2008l3l.l 0640801001

Case 1:05-cv-00160-KAJ-|\/IPT Document 98 Filed O3/O3/2006 Page 2 of 2
Yourio CoNAwAY STARGATT & TAYLOR, LLP
The Honorable Kent A. Jordan
March 3, 2006
Page 2
We also wish to point out that both parties have produced documents since the pre—trial
conference. In fact, Genencor produced an expert report just this past Monday, February 27, just
a week before trial, in rebuttal to Dr. Arnold’s February 14 report (which, as a rebuttal to a
rebuttal report was improper under the Court’s scheduling orders in this case). Novozymes is
deposing that expert this afternoon. Genencor provided no explanation as to why it took them
almost two weeks to produce this report. In addition, Genencor complains about documents
produced after depositions, but Genencor asked for additional documents in those depositions.
Novozymes simply complied with Genencor’s request, without, for the most part, disputing
whether Genencor was actually entitled to them. Novozymes did its best, in the spirit of the
Court’s order, to be cooperative.
Genencor now asks, on the eve trial, after weeks of discovery and the parties having
taken six depositions] that it all be erased as if it never happened. This is not reasonable, there is
no reason to do so, and, Novozymes submits, is not in accordance with the Court’s wishes
expressed at the pre—trial conference. The Court should deny Genencor’s requests.
Respectful
Rolin P. Bissell (No. 4478)
RPB:smf
cc: Donald E. Reid, Esquire (via email)
I Genencor originally demanded depositions of more witnesses, but then withdrew its requests
after Novozymes had spend considerable time and effort toward arranging for witnesses to travel from
Denmark to the U.S.
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